The final round of 'conciliation talks' between MEPs and government ministers will tonight decide the fate of the UK's opt-out from the EU's 48-hour working week, potentially making it illegal to work more than 48 hours, if the Government does not get its way in the negotiations. For the record, the right to opt-out is also enjoyed by workers in 14 other member states, including Germany.
The Government has repeatedly said that it will fight to retain the opt-out and it looks as though it may succeed, but at what cost?
If no agreement is reached at tonight's talks the whole proposal will fall, leaving the opt-out intact but with the downside that there will be no resolution to the issue of how on-call time is counted as working time. EU rules for on-call time are hugely problematic at the moment, particularly in the public sector, because of the European Court of Justice's ludacrious intepretation of the WTD. In the SiMAP and Jeager cases, the ECJ ruled, against all known principles of common sense, that all time doctors, nurses and others spend on-call, must be counted as active on-call time - even when the doctor is sleeping.
This interpretation messed up rota systems in health care sectors all over Europe and imposed massive extra costs. In fact, on-call time is the reason why national governments were so keen to revisit the issue of working time in the first place.
As with all EU negotiations compromise is usually required and, almost equally as often, it is far from ideal. The FT today reported that there is a deal on the table that will allow the UK to retain an opt-out but only with significant concessions.
From Brussels we hear that the UK may agree to a provision that would require workers regularly exceeding the 48-hour limit to write to their employers twice a year to say they are still prepared to choose their own working hours. Employees would not be able to sign an opt-out during a probationary period and would be allowed to withdraw from any agreement without notice.
These proposals would add extra burdens to businesses and the public sector and are a prime example of regulatory over-kill. The existing rules a quite clear about the opt-out being an individual choice that employers must respect.
The FT's article also states that, under the proposed compromise, member states retaining the opt-out will have to present a report to the European Commission on the health and safety aspects of their decision not to limit hours, as well as detailing how many workers are working over 48 hours.
It might just be us but this requirement seems patronising in the extreme and illustrates everything that is wrong and, quite frankly, ridiculous about the whole situation. That is, that MEPs think they and the European Commission know better than democratically elected national governments and, even worse, the general public.
Why would the UK agree to such a proposal? The answer is that there is still a chance that its allies in the negotiations might be so desperate to resolve the issue of on-call time that they agree to give up the opt-out. The UK doesn't have a veto in the negotiations, and can be outvoted, contrary to the reports in the FT.
This sorry episode shows how erratic the European Parliament can be - and the problems that may be created should it get more powers under the Lisbon Treaty.
Surely there needs to come a time when the Government can just say 'No'.